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May062017

WASHINGTON — Obscured by the furor over surveillance set off by the investigations into possible Trump campaign coordination with Russia during the election, a major debate over electronic spying that defies the usual partisan factions is quietly taking shape in Congress.

The debate centers on the National Security Agency’s incidental eavesdropping on Americans via its warrantless surveillance program, which spies on foreigners abroad whose communications pass through American phone and internet services. Its legal basis, the FISA Amendments Act, is set to expire at the end of 2017.

A bipartisan coalition of privacy-minded lawmakers has started to circulate draft legislation that would impose new limits on the government’s ability to use incidentally gathered information about Americans who are in contact with foreign targets.

Many of those lawmakers are veterans of a fight two years ago over the U.S.A. Freedom Act, a law that ended an N.S.A. program that gathered Americans’ calling logs in bulk. They won that fight against security hawks because the statute on which the program was based, part of the Patriot Act, was expiring and they were unwilling to extend it without ending the bulk collection.

The privacy advocates in Congress are using that same lesson this time around, hoping to leverage their colleagues’ concerns that the program will lapse if they fail to extend the law.

But the intelligence and law enforcement communities and their allies in Congress appear determined to extend the warrantless surveillance program law, Section 702 of the FISA Amendments Act, without changes. They are framing the debate as being about a program that is too important to be held hostage to any push for changes, lest gridlock kill it.

“This is a tool that is essential to the safety of this country,” the F.B.I. director, James B. Comey, told Congress at a hearing on Wednesday. “I did not say the same thing about the collection of telephone dialing information by the N.S.A. I think that’s a useful tool; 702 is an essential tool, and if it goes away, we’ll be less safe as a country. And I mean that.”

Mr. Comey also warned that one of the proposed changes — a new requirement that a warrant be obtained to search for Americans’ information in the surveillance repository — risked a failure to “connect dots” about potential threats.

But Representative Ted Poe, Republican of Texas, sought to warn other lawmakers that Congress needed to impose a warrant requirement.

“Privacy is being betrayed in the name of national security,” Mr. Poe told congressional aides at an event to discuss Fourth Amendment issues and legislation late last month.

More broadly, two key members of the coalition that won privacy gains two years ago — Representative John Conyers Jr. of Michigan, the ranking Democrat on the House Judiciary Committee, and Representative Jim Sensenbrenner, Republican of Wisconsin — are discussing a draft bill, which is circulating among panel members.

A congressional staff member who described the draft on the condition of anonymity because it is not yet finalized or public said it incorporated a warrant requirement for American searches — with certain exceptions — and would:

? Restrict law enforcement from using information obtained or derived from warrantless surveillance except when investigating the most serious crimes, like murder.

? Reduce to three years from five years the time the government may retain raw, or unprocessed, messages collected without a warrant.

? Codify a change that the N.S.A. and Foreign Intelligence Surveillance Court recently made to the program, ending so-called about collection of emails, from internet network switches, that talk about a foreigner being spied on but are not to or from that target.

? Require disclosures from the government that are more complete, including forcing the F.B.I. to say how often its agents query for Americans’ information in national security cases, which it has declined to track.

The draft was part of a discussion at a Monday closed-door meeting convened by the Judiciary Committee chairman, Representative Robert W. Goodlatte of Virginia, according to the congressional staff member. On Tuesday, Mr. Goodlatte said publicly that changes would be necessary because “there’s broad bipartisan support for reform.”

“I know there are some people who want a clean reauthorization of Section 702,” he said. “I don’t believe that is possible.”

According to a government report issued this month, the F.B.I. only once in 2016 used information about Americans in the warrantless surveillance repository while investigating ordinary criminal cases. But its agents are believed to use it much more frequently for national security cases; other agencies, like the N.S.A. and the C.I.A., used 5,288 search terms associated with Americans for such queries last year.

The Trump administration has generally declined to discuss proposals for limiting the program. But the Office of the Director of National Intelligence recently said requiring a warrant to search for Americans’ information “would severely hamper the speed and efficiency of operations” to protect the country.

The program can be traced back to the Bush administration’s post-Sept. 11 warrantless wiretapping of international phone calls and emails, which bypassed a 1978 law requiring warrants.

Congress legalized a version of that activity in 2008 with the FISA Amendments Act. It permits the N.S.A., on domestic soil without a warrant, to collect messages of foreigners abroad from American phone and internet companies — including when they communicate with Americans. It also expanded the program from a counterterrorism tool to one that can be used for any foreign intelligence purpose.

But the statute did not say how information about Americans that was incidentally gathered should be handled. A newly declassified document, obtained by The New York Times via a Freedom of Information Act lawsuit, has shed further light on how the government expanded its power to use such data.

In 2008, the Bush administration submitted to the Foreign Intelligence Surveillance Court a set of proposed rules for what the F.B.I. could do with raw information gathered by the program. It would permit agents to search intercepts “to find, extract, review, translate and assess” whether they might contain foreign intelligence — or “evidence of a crime.”

The court secretly approved those rules in 2009, on the Obama administration’s watch. That fall, previous disclosures have shown, the N.S.A. began sharing with the F.B.I. raw emails gathered via the program’s so-called Prism or “downstream” system, which gathers surveillance targets’ emails through internet services like Google Gmail.

The N.S.A. was not permitted to share with other agencies the raw intercepts it gathered via the program’s “upstream” system, which collects emails from telecommunications companies like AT&T, nor to search for Americans’ information within them. But after a recent change, the N.S.A. is allowed to perform such searches in that repository, too. (A senior intelligence official said it still may not share raw upstream intercepts with other agencies.)

The critics who want Congress to impose a warrant for any type of American queries call the practice the “backdoor search loophole” in Fourth Amendment privacy rights. But in November 2015, the Foreign Intelligence Surveillance Court rejected a challenge to this practice, upholding the F.B.I.’s rules as constitutional.

It was not yet clear that such searches were happening in 2012, when the FISA Amendments Act was last set to expire and Congress extended it without changes. But Edward J. Snowden’s 2013 leaks and related declassifications brought to light more information, and the furor over surveillance in conservative circles resulting from the Trump-Russia imbroglio has added a wild card.

Senator Ron Wyden, an Oregon Democrat on the Intelligence Committee and an outspoken critic of surveillance, said that affair “is helpful for the reformers’ cause because it is generating awareness about the topic generally.”

At a hearing in February, Representative Trey Gowdy, Republican of South Carolina, told Mr. Comey that leaks about surveillance of Trump associates’ contacts with Russians, though conducted under a different law, were “a threat to the reauthorization” of the FISA Amendments Act.

“Trust me, you and I both want to see it reauthorized,” Mr. Gowdy said. “It is in jeopardy if we don’t get this resolved.”